Patna High Court
Musammat Manki Koer vs Musammat Manrakhan Kuer And Ors. on 26 February, 1920
Equivalent citations: 56IND. CAS.841, AIR 1920 PATNA 102
JUDGMENT Dawson Miller, C.J.
1. This is an appeal from a decision of the District Judge of Patna, dated the 17th June 1918. The appeal arises out of an application by Manki Kuer, the widow of Nathuni Sahu, for revocation of Probate of the Will of her husband granted to Lakhan Lal and Sita Ram, his nephew's sons, and for a grant of Letters of Administration with the Will annexed in respect to his property to herself. It appears from the evidence that the testator executed a Will on the 9th April appointing Mannu Lal his nephew as his executor. Mannu Lal applied for Probate before the District Judge, but during the Probate proceedings he died and the application was carried on in the name of Lakhan Lal his son through Manki Kuer, the widow of the testator, as his next friend, Lakhan Lal and his brother Sita Ram being at that time minors. His application to have his name substituted in place of that of his father in the Probate suit was granted and on the 13th December 1917 a grant of Pro-bate was made to Lakhan Lal. On the 7th Mar oh 1918 Lakhan Lal applied through his mother Manrakhan Kuer as his next friend that the name of Manki Kuer, the widow of the testator, should be struck out and the name of his own mother Manrakhan substituted in her stead. On the 23rd March Manki Kuer's name was removed and Manrakhan's name was substituted as guardian and next friend of Lakhan Lal. About the same time Manti Kuer herself Bled an application that the Probate be withdrawn and Letters of Administration granted to her, on the ground that she was the widow of Nathuni Sahu the testator and was interested in the property and that Lakhan Lal had no right under the Will to obtain Probate. On the 9th April 1918 Lakhan Lal through his next friend Manrakhan Kuer filed a petition that his brother Sita Ram should be added in the Probate as executor with him and that the Probate should be corrected or that Letters of Administration should be granted to them both, and on the 10th April in the same year Manki Kuer filed another petition claiming revocation of Probate and the grant of Letters of Administration to herself.
2. The matter came before the District Judge on the 17th June 1918, when all these questions were considered and determined and the learned Judge made an order revoking the grant of Probate to Lakhan Lal and Sita Ram, on the ground that the Probate had been granted per incuriam, these persons being in fact minors at that time, and he further ordered that Letters of Administration with the Will annexed be granted to Manrakhan Kuer mother and guardian of Lakhan Lal and Sita Ram, minor executors of the Will of Nathuni Sahu deceased limited until one of them should attain majority.
3. It is from that order that the present appeal is brought by Manki Kuer, and she contends that under the Will of her late husband neither Lakhan Lal nor his brother Sita Ram were appointed as executors at all and that, therefore, the order of the learned Judge granting Letters of Administration to their mother Manrakhan Kuer cannot stand as it was based upon the hypothesis that Lakhan Lal and Sita Ram were in fact appointed executors of the Will upon the death of their father Mannu Lal. It is necessary in order to decide this question to consider that part of the Will in which executors are appointed. There can be no doubt that the testator, who died leaving no male relations nearer than his brother's son Mannu Lal, although he left a wife and a daughter and a granddaughter, did appoint Mannu Lal his executor and in a subsequent part of his Will he provided: "If the aforesaid executor dies, then after his death his ton and heir's representatives who shall be fit for the work will act as executor representative to carry on the work in place of the deceased executor in regular succession in perpetuity." It will be seen from that that the person or persons who were appointed to act as executor or executors in the event of the death of Mannu Lal were his descendant or descendants in the male line who should be fit for the work, and the contention on behalf of the appellant is that there was on the death of Mannu Lal no person alive who was fit to carry on the work, of executor as the only two people who would otherwise have complied with the description were Mannu Lal's sons, Lakhan Lal and Sita Ram, who were minors and, therefore, unfit. There was in fact no specific appointment of either Lakhan or Sita Ram as executors and that being so, Section 31 of the Probate and Administration Act had no application because in fact Lakhan and Sita Ram, not fulfilling the description mentioned in the Will, were not executors so that their legal guardian was not entitled, as the learned Judge assumed was the case, to be appointed administrator during the period of their minority. Some question has arisen daring the course of the hearing and certain arguments have been placed before us as to what is the exact meaning of the words "shall be fit for the work," It is contended on the one hand that these words mean not only that the person there referred to shall be under no legal disability such as that mentioned in Section 8 of the Probate and Administration Act but that they shall be persons who have shown a particular aptitude for the class of work which is required from an executor and that in any case as they are not fit under the provisions of Section 8 of the Probate and Administration Act they are, therefore, not persons who are named in the Will as executors. On the other hand it is contended that the words "who shall be fit " simply mean that they shall not be excluded by reason of minority or unsoundnees of mind as provided in Section 8. If the first contention be accepted, viz., that although they are of age and of sound mind, they must nevertheless be persons who have disclosed some particular aptitude for this class of work, then the appointment is void for vagueness and uncertainty and if that were the proper construction, I should be inclined to agree that the appointment was void on the ground that it is too uncertain and too vague as it is a matter of considerable difficulty for anybody to say which, if any, of the persons otherwise qualified was fit for the particular class of work. I think, however, speaking for myself, that the words used in that clause of the Will merely mean that the person to be appointed executor should be a person who was suffering under no legal disability such as that; referred to in Section 8 of the Probate and Administration Act.
4. That, however, does not solve the whole of the question to be considered in this case, because even taking the narrower construction of the words it is quite clear that neither Lakhan Lal nor Sita Ram were persons who came within the description in the Will and, therefore, it cannot be said that there was any appointment of them as executors after the death of their father Mannu Lal. The result is that, in my opinion, the learned Judge was wrong in appointing the mother of the two minors as administrator on the ground that she was the mother of the executors appointed under the Will, There were in fact in the circumstances no executors appointed under the Will after the death of Mannu Lal, at all events until either Lakhan or Sita Ram attain their majority, so that until that time arrives there will be a period during which there are no executors appointed under the Will.
5. That, however, does not dispose of the whole question, because although it may be true that the learned Judge was wrong in appointing Manrakhan Kuer administrator on the ground that she was the guardian of the executors, he may nevertheless have been justified in appointing her as administrator on other grounds, and the respondents contend in this case that they can support the learned Judge's decision upon the ground that for other reasons Manrakhan Kuer was in the circumstances the proper person to be appointed administrator and not Manki Kuer, the appellant. Two courses are open to us in such circumstances. We might either send the case back to the learned District Judge for him to consider the question of who is the proper person to be appointed administrator, or, as the whole of the evidence is before us which would enable the Court to determine this question, we may ourselves go into it and decide it. After intimating to the learned Vakil who appeared for the appellant and the learned Counsel who appeared for the respondents that we were disposed to deal with the question ourselves to save the time and expense of remanding it to the District Judge, we invited them to address themselves to us upon this question which they did, and after hearing arguments upon it I have come to the conclusion that the order of the learned District Judge was justified, if not upon the ground which he gave at all events upon other grounds, and that his order ought not to be reversed. The reason why I arrive at this decision is that as between the claims of Manki Kuer, the widow of the testator, and Manrakhan Kuer, the mother of the two minors, it seems to me that the provisions of the Probate and Administration Act point rather to the claim of the latter as being that which we ought to recognise. Although Lakhan and Sita Ram are not in fact under the terms of the Will appointed executors, they have a very considerable interest as reversionary legatees. Manki Kuer, on the other hand, has under the Will a life-interest in the income of half the residue after making provision for certain religious endowments, but this interest ceases if she should re-marry. The other two ladies Golabo Kuer, the daughter of the testator, and Matukni, his grand-daughter, also have a life-interest Sin equal shares in the income of the other half. Under Section 19 of the Probate and Administration Act, which applies to a case where an executor has not been appointed or when an executor appointed has died, which is the case here, a universal or residuary legatee may be admitted to prove the Will, and Letters of Administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered. It is true that in the present case although Lakhan and Sita Ram are reversionary legatees, they cannot claim themselves to be administrators because they are not of age, but in a few years time that disability will have disappeared and it seems to me more fitting and proper that in the meantime their mother Manrakhan Kuer should be appointed administrator during their minority. Another reason which induces me to this conclusion is, as the learned Judge points out in his judgment, that Manki Kuer had already been removed from the position of next friend of the minors because it was found that she had a conflict of interest. In these circumstances I think that the order made by the learned District Judge ought to stand for the reasons I have given and that this appeal should be dismissed. In the result the order made by the learned Judge in the last paragraph of his judgment will be modified to this extent that the words "executors of the Will of Nathuni Sahu deceased limited until one of them attain majority" will be struck out.
6. In the particular circumstances of the case we think that both parties should pay their own costs of the appeal.
Coutts, J.
7. I agree.